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Canadian Council of Christian Charities Granted Intervener Status in TWU Case: The Supreme Court Changes Course On TWU Interveners

cccc — Mon, 31 Jul 2017 23:59:48 +0000

Supreme Court of Canada Ottawa Credit: Barry W. Bussey

In another surprising move, the Supreme Court of Canada (SCC) has “varied” Justice Richard Wagner’s order on the Trinity Western University (TWU) School of Law case.

On July 27, 2017, Justice Wagner granted intervener status to 9 out of 26 applications.
Four days later, on July 31, Chief Justice Beverley McLachlin issued a new order allowing all 26 applications (of the 32 groups) intervener status. (The Attorney General of Ontario is also intervening and is allowed intervener status as a matter of right.)

This means that all the groups will be allowed to file a 10-page brief (a factum) and make a five-minute oral argument at the hearing. Because some of the groups filed jointly the total number of intervener briefs will be 26 (27 counting the Attorney General of Ontario).

Given that the number of participants at the hearing has tripled, the Court has extended the hearing to two days.

The hearing is now tentatively scheduled for November 30 and December 1, 2017.

Making History

This case, with some 26 intervener applications, has attracted among the highest number of interveners in Canadian judicial history.

The 2004 Reference re: Same-sex Marriage at the SCC had about 26 applications and was also held over two days. It is relatively rare for a Supreme Court of Canada hearing to cover two days; however, this case is proving to be one of the most important cases on religious freedom since the Big M Drug Mart case in the 1980s.

Ontario, Nova Scotia, and British Columbia

The TWU School of Law case has been unpredictable from the start. Despite being inundated with opposition to TWU’s law school, the Federation of Law Societies of Canada approved the school. However, that decision was rejected by the law societies in Ontario, Nova Scotia, and British Columbia.

In British Columbia there were many twists and turns. The Law Society of BC first rejected an attempt to overthrow the Federation’s decision, but some months later, held a referendum of its membership which called on the Society to reject TWU. It did. However, the B.C. Law Society lost its judicial review in both the BC Supreme Court and the BC Court of Appeal and has now appealed to the Supreme Court of Canada in Ottawa.
In Nova Scotia, the Nova Scotia Barristers’ Society lost on judicial review of its decision in both the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal but did not appeal further.
In Ontario, the Law Society of Upper Canada won both in the Ontario Divisional Court and in the Ontario Court of Appeal. TWU has appealed that decision to the Supreme Court of Canada.

Justice at the Supreme Court of Canada, Ottawa Credit: Barry W. Bussey

Serious Concern

Canadian Council of Christian Charities has been intervening in the case from the beginning. Should TWU lose this case we have serious concerns about the ability of Christian groups to maintain their government licenses to operate in the long term.

General Positions

TWU opponents have argued that because government (in this case the law societies) accredits TWU it must ensure that even private religious organizations follow public norms on issues such as marriage.
CCCC has maintained that the promise of Canada includes the ability of religious groups to operate in accordance with traditional norms even though society at large considers that discriminatory. Public approval of a private religious institution, such as a university, does not make that institution public.

Great Importance

This case is, for that reason alone, of great importance to the Christian community. Despite all the permutations that this litigation has taken, it remains a case to watch. Until the day when the SCC releases its final decision after this year’s hearing we will continue to be in suspense.

Stay tuned, for we do not know what tomorrow will bring!

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Supreme Court Grants Leave On TWU

cccc — Thu, 23 Feb 2017 20:37:23 +0000

The Supreme Court of Canada decided today that it will hear Trinity Western University’s appeal of its loss in the Ontario Court of Appeal last June.

Both the Ontario Divisional Court and the Ontario Court of Appeal ruled in favour of Ontario’s law society (The Law Society of Upper Canada). That law society refuses to accept any TWU law graduate that wishes to article in Ontario. Articling is the term given to the 12 month legal training a law graduate receives under the direct supervision of a senior lawyer before being eligible to be called to practice law on their own.

The Supreme Court also granted leave in the Law Society of British Columbia’s appeal of the BC Court of Appeal’s decision last year that ruled in favour of TWU. The British Columbia Supreme Court had also ruled in favour of TWU.

Both the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal ruled in favour of TWU. However, after its loss at the NS Court of Appeal, the Nova Scotia Barristers’ Society decided not to appeal to the Supreme Court of Canada.

Both the Ontario and the British Columbia appeals will be heard consecutively by the Supreme Court in Ottawa, on a date yet to be determined.

Supreme Court of Canada, Ottawa

Trinity Western University applied in June 2012 to the Federation of the Law Societies of Canada for accreditation of its proposed law school. Opposition arose from a number of advocate groups including academics, such as the Canadian Law Deans, because of TWU’s requirement that its students sign a Community Covenant which, among other things, requires a lifestyle in harmony with its religious view of traditional heterosexual marriage. Though it is a private school, with no government funding, and though it had won a similar challenge at the Supreme Court in 2001, the opposition demanded that the school not be granted accreditation. However, in December 2013, the Federation, after much study and debate, recognized TWU’s religious freedom to be permitted to operate a law school, and given that the proposal met the academic requirements, it granted TWU accreditation.

A firestorm erupted among those against TWU and pressure was brought to bear on each provincial law society not to accept the Federation’s decision. Three societies ultimately decided against accepting TWU’s law school proposal: Ontario, Nova Scotia and British Columbia. That led to TWU appealing to the courts. The courts at both levels in Nova Scotia and British Columbia ruled in favour of TWU recognizing its right to religious accommodation under the Charter. However, both courts in Ontario ruled against TWU, citing its religious practice on marriage as being discriminatory against LGBT students.

For those in the legal community who wanted the 2001 TWU decision overturned, because it gave TWU the right to operate its university within a traditional Christian environment, getting the Supreme Court to hear this case has been a win. As Lisa Teryl, Legal Counsel for the Nova Scotia Human Rights Commission stated, “A judicial review would open up the possibility of the Supreme Court of Canada revisiting its [2001] reasoning. The High Court could consider the issues reframed in terms of the preservation of democratic state values of maintaining a separation of church and state for secular activities that conflict with discriminatory religious beliefs.”

For those of us in the religious community this case has been something that we had long suspected would happen as the sexual equality rights campaign becomes more focused on those religious communities that maintain their traditional sexual mores. We are now entering a time where even private religious communities, in their own religious organizations, are being challenged for their “discriminatory religious beliefs.” Even though our organizations are “private” in that they are run and operated by religious communities, those who do not accept our right to so operate have labeled our enterprises (such as running schools and universities) as “public” because we have to be publicly accredited. This is a total re-imagining of the concept of religious freedom that we have enjoyed in Canada since its founding. It is a revolutionary position.

In the coming weeks Canadian Council of Christian Charities will be seeking leave to intervene in these two cases. We will keep you informed how things work out.

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Nova Scotia’s Highest Court Rules in Favour of TWU

cccc — Tue, 26 Jul 2016 22:13:09 +0000

The Law Courts, Halifax, Nova Scotia

The Nova Scotia Court of Appeal ruled in favour of Trinity Western University today.I have drafted an Op-Ed piece and have submitted it to a newspaper for publication. If no paper will pick it up I will publish it here on my blog. In the meantime here are a few thoughts to ponder:

First, the Nova Scotia Court of Appeal ruled on what we call “administrative law” grounds. That is, it decided that the Nova Scotia Barristers Society did not have the jurisdiction to do what it claimed to do. In other words, its only jurisdiction is to act in the public interest in the practice of law. That means that it has a role in making sure that lawyers are equipped to do the work of a lawyer. It can make sure that a law graduate is from a school that has met all of the requirements in properly educating the law student. In this case the Federation of the Law Societies of Canada had determined that TWU was competent to carry out its teaching requirements. “The Society does not have a stand-alone authority over the public interest and the administration of justice.”

Second, the Society had taken it upon itself to determine whether TWU “unlawfully discriminates” under the Charter or the Nova Scotia Human Rights Act. However, the Court noted that TWU is a private university and is not subject to the Charter. In other words it has the benefit of being protected by the Charter but not the burden of the Charter. The Court also recognized the 2001 Supreme Court of Canada’s decision that the Charter does not apply to TWU as if it were a government agency. Further, the Court found that the Society had not “a supportive word” in Nova Scotia legislation that in anyway permitted the Society to “assert for itself an autonomous jurisdiction concurrent with that of a human rights board of inquiry.” Nor is there any legislative approval for it to be “a court of competent jurisdiction under the Charter with the authority to rule that someone’s conduct in British Columbia unlawfully violated the Charter.”

Given that TWU is not subject to the Charter and is exempt from the Human Rights legislation in BC it could not be found to “unlawfully” discriminate.

Third, the Society can only be concerned about the university to the extent it is in line with its responsibilities – the practice of law. By implication it has no business dealing with lawful religious practices of the university that is irrelevant to a graduate’s competence to practice law.

Fourth, the Society could not punish a TWU law graduate for the TWU admissions policy that it did not like. Here is how the Court put it: “Trinity Western’s law graduate is not Trinity Western’s alter ego.”

Observations:

I am very happy that TWU won this case. As I noted in an earlier post after the oral hearing I would have been surprised, given the struggle the Society had in presenting a convincing argument, that it had the authority to do what it claimed. From the get-go the Society has been off-side. With both Justice Jamie S. Campbell’s decision in the lower court and now the Court of Appeal decision that is the case. In my view, the Supreme Court of Canada will be hard pressed to go against its 2001 TWU decision in light of these two Nova Scotia decisions.

Unfortunately, the Court of Appeal did not address the religious freedom issues raised in the case. It would have been gratifying if the Court had agreed with Justice Campbell’s decision that TWU’s religious freedom was in fact infringed and that the proportionality test favoured TWU’s protection. However, a win is a win and this is a great day for religious freedom in Canada.

This entire case does raise some very important questions about political correctness in Canada. For example, how is it that a Christian university, which has done nothing wrong but kept faithful to its understanding of marriage since its inception, which does not violate the law in any way, could be so challenged by a barrage of legal cases in three provinces? How is that just? The law has been consistently on TWU’s side – save for the decisions out of the Ontario Courts – which we will have to wait to see how the Supreme Court of Canada deals with those. The Ontario decisions are problematic for religious freedom if they are left to stand.

Nevertheless, the amount of ridicule, the outright sophisticated arguments against TWU is unparalleled. It does not bode well for religious communities who are on the outside of secular norms. One would have thought that after the 2001 Supreme Court of Canada decision TWU would have been safe; but no it was not: one would have thought that after the Federation of the Law Societies of Canada decision TWU would have been safe; but no it was not. On and on it goes. Just when is enough enough?

Should TWU ultimately win at the Supreme Court of Canada in this case for its law school – will it be safe then? Perhaps if 20 years from now it wants to open a medical school will it have to again go through this same arduous process? Unfortunately, given its history, we would have to admit that it might. Why? Because its views on how one ought to live is no longer the norm in the opinion of Canadian elites?

It is time for this country to begin asking whether this treatment of religious communities is in keeping with our greater ideals. Is it the way of Canadian pluralism? Is it really allowing different groups to be all who they are as we live together on the same real estate?

No one is forced to attend TWU. No government money is propping up the school. This is a religious community doing what religious communities have done since about 600AD – run a university in keeping with their religious beliefs. Nothing that TWU has done is in anyway “unlawful” as the Nova Scotia Court of Appeal said – but still the struggle continues……

I posted a copy of the Nova Scotia Court of Appeal Decision here: https://www.academia.edu/27267678/NSCA_DECISION_NSBS_v_Trinity_Western.pdf

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Being On the Right Side of History: Where the Offended Take Away Religious Freedom

cccc — Tue, 05 Jul 2016 22:07:47 +0000

Ontario Court of Appeal Osgoode Hall, Toronto

Trinity Western University’s Community Covenant is discriminatory and it hurts. So said Ontario Court of Appeal Justice James C. MacPherson on June 29. He decided that the Covenant, which requires TWU’s student body to abide by a lifestyle in harmony with traditional marriage, “is deeply discriminatory to the LGBTQ community, and it hurts.” As far as he was concerned, based on that hurt, the Law Society of Upper Canada’s denial of accreditation to TWU’s School of Law was reasonable.

That is a far different conclusion from what the Supreme Court of Canada said in 2001. The Supreme Court reviewed TWU’s admissions policy in a case involving the accreditation of TWU’s education degree. It also recognized the same hurt. Back then the Court was willing to allow applicants to be offended for the sake of keeping Canada a diverse society where not everyone agrees on matters of sexuality. The 2001 Court accepted that TWU’s admissions requirement would mean that “a homosexual student would not be tempted to apply for admission;” if they did so, it would be “at a considerable personal cost.” The Court understood that “TWU is not for everybody,” rather “it is designed to address the needs of people who share a number of religious convictions.”

If TWU’s standards were “sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.” That was a very good point by the 2001 Court. You deny the religious university professional accreditation, because of its standards, then logically you must also deny members of a church who hold the same views as that university. It makes sense. It is clear.

“The diversity of Canadian society,” said the 2001 Court, “is partly reflected in the multiple religious organizations that mark the societal landscape and this diversity of views should be respected.” The Court was interested in maintaining the freedom of Canadians to hold diverse views and be different – even if others are offended – as long as such differences did not go against public policy. Traditional sexual moral views were not deemed to have crossed that line. In other words, we could be different and still live together allowing religious communities to be unlike the secular society but still remain part of the Canadian mosaic.

That was then. Justice MacPherson’s views are the new now – because it is 2016 perhaps. Times have changed. No longer do those views of the 2001 Supreme Court hold sway – not for the Ontario Courts and the Law Society of Upper Canada.

Justice MacPherson agreed with the Ontario Divisional Court that the Supreme Court’s 2001 decision is not applicable because it involved different facts, a different statutory regime and a fundamentally different question. However, that is a curious position given the striking similarities between the two cases. Consider this:

2001 TWU Education Degree Case	2016 TWU Law Degree Case
1. TWU Degree Accreditation—Education Degree	1. TWU Degree Accreditation—Law Degree
2. Professional Administrative Decision of Government Actor acting in the “public interest”—British Columbia College of Teachers	2. Professional Administrative Decision of Government Actors acting in the “public interest”—BC Law Society; Law Society of Upper Canada; Nova Scotia Barristers’ Society
3. Accusation—Potential Discrimination against homosexuals by TWU students suspected but there was no evidence of discrimination.	3. Accusation—Discrimination against LGBTQ by TWU’s Admission’s policies—students deemed competent and there is no evidence of discrimination of TWU students
4. Instrument—Community Standards	4. Instrument—Community Covenant

Lawyers are great at parsing distinctions. We do it for a living. The supposedly great distinction between the two TWU cases is this:

In 2001, the question was whether the BC College of Teachers could accredit TWU’s education program, with the discriminatory admissions criteria, for fear that TWU graduates might discriminate against gay students when they taught;

In 2016, the question is the whether a law society can accredit TWU’s law program in light of TWU’s requirement that applicants have to sign the Community Covenant.

Catch the difference? It’s there, but rather opaque.

Perhaps the general public might be excused for thinking that the distinction is rather esoteric. It is. But that is really not the point. The point is that politics not law has evolved to such a degree that the legal profession is being pressured to deny TWU’s law school because “it hurts.”

Conveniently overlooked in this technical argument is the fact that the Supreme Court in 2001 did turn its mind to the admissions requirement and ruled, as noted above, that there is a cost but in Canada we are willing to agree to disagree and move on. That does not diminish one person’s hurt because of another’s offensive view. Rather, offense is not, and should never be, the basis for removing a constitutional right.

What kind of society are we going to be when offence becomes the rationale to take away another’s right? At one time, the majority were so offended by the sexual activity of others that rights were denied. Now the tables have turned – those in power are denying the religious freedom of those whose sexual norms are centred on traditional marriage. Perhaps we have yet to learn the lesson. What if, the tables turn again – as they often do in human history? Offence is a poor substitute for law.

TWU, unlike the Law Society of Upper Canada, is on the wrong side of history – for now. “The benchers knew,” wrote Justice MacPherson, “that they were making an historic decision.” Historic indeed.

When the final history of this case is written we will learn a lot about the state of the law in Canada. Whether the Supreme Court of Canada decisions have a longer shelf life than 15 years. Whether private religious institutions, not subject to the Charter, can suddenly become subject to the Charter by an indirect means. Whether we are a country that has a plurality of religious views or whether the religious citizens must all give credence to the state’s definition of sexual morality.

History will also be changed as the Charter becomes the “blueprint for moral conformity” as Justice Jamie S. Campbell warned in his Nova Scotia decision. Justice MacPherson’s decision has the effect of saddling private religious organizations with the burden of the Charter as is the government. Under such a regime human rights legislation becomes redundant. All private entities must ensure total equality. No more distinctions. That prospect will now challenge the very notion of Canada’s plural society. Religious communities can no longer rely on the protection of the Charter for their right to practice their distinctive religious faith. A government agency, such as the Law Society of Upper Canada, now has the full sway to determine what religious practice is “reasonable,” and do so based on subjective popular opinion of what is offensive.

This is a total rewriting of our law. It is a total rewriting of the Constitutional protection of religious freedom. Welcome to the right side of history… where the offended take away religious freedom.

Lawyers representing TWU and pro-TWU interveners

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